Budd v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 12, 2014. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
DAVID R. BUDD
vs.

PLAINTIFF
Civil No. 3:13-cv-03008

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
David R. Budd (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his applications for a
period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Act. The Parties have consented to the jurisdiction of a
magistrate judge to conduct any and all proceedings in this case, including conducting the trial,
ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 8.1
Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final
judgment in this matter.
1.

Background:
Plaintiff protectively filed his disability applications on October 8, 2009. (Tr. 11, 137, 144).

Plaintiff alleges being disabled due to Hepatitis C, COPD, asthma, and back problems. (Tr. 180).
Plaintiff alleges an onset date of January 1, 2006. (Tr. 137, 144, 180). These applications were
denied initially and again upon reconsideration. (Tr. 74-77). Thereafter, Plaintiff requested an

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The docket numbers for this case are referenced by the designation “ECF No. __.” The
transcript pages for this case are referenced by the designation “Tr.”

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administrative hearing on his applications, and this hearing request was granted. (Tr. 95-104).
On March 15, 2011, this hearing was held in Harrison, Arkansas. (Tr. 28-73). Plaintiff was
present at this hearing and was represented by Frederick S. Spencer. Id. Plaintiff and Vocational
Expert (“VE”) Dale Thomas testified at this hearing. Id. During this hearing, Plaintiff testified he
was forty-five (45) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c)
(2008) and 20 C.F.R. § 416.963(c) (2008) (SSI). (Tr. 32). Plaintiff testified he had completed the
ninth grade in high school and had no additional education. Id.
After this hearing, on August 30, 2011, the ALJ entered an unfavorable decision denying
Plaintiff’s disability applications. (Tr. 8-23). In this decision, the ALJ found Plaintiff met the
insured status requirements of the Act through June 30, 2008. (Tr. 13, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since January 1, 2006,
his alleged onset date. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease of the lumbar spine, osteoarthritis of the cervical spine with
associated chronic right shoulder pain, hepatitis C virus (HCV), asthma, generalized anxiety
disorder, and antisocial personality disorder. (Tr. 13-15, Finding 3). The ALJ, however, also found
Plaintiff’s impairments, singularly or in combination, did not meet or medically equal the severity
of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (“Listings”). (Tr. 15-16,
Finding 4).
The ALJ then evaluated Plaintiff’s subjective complaints and his Residual Functional
Capacity (“RFC”). (Tr. 16-21, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints
and found they were not credible to the extent he alleged. Id. Second, the ALJ determined Plaintiff
retained the following RFC:

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After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except he can only occasionally climb ramps and
stairs, he can never climb ladders, ropes and scaffolds, and he can only occasionally
balance, stoop, kneel, crouch, and crawl. He cannot perform overhead work with his
right upper extremity, he can perform frequent but not constant reaching and
handling in all other directions with his right upper extremity, and he must avoid
even moderate exposure to temperature extremes, wetness, humidity, fumes, odors,
dusts, gases and poor ventilation. The claimant is further limited and can perform
work where interpersonal contact is incidental to the work performed, the complexity
of tasks is learned and performed by rote with few variables and little judgment, and
the supervision required is simple, direct and concrete, and which does not involve
contact with the general public.
Id.
Considering his RFC, the ALJ determined Plaintiff retained the capacity to perform his Past
Relevant Work (“PRW”) as a material handler. (Tr. 21-22, Finding 6). The VE testified at the
administrative hearing on this issue. Id. Because Plaintiff retained the capacity to perform his PRW,
the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from January 1,
2006 through the date of his decision or through August 30, 2011. (Tr. 22, Finding 7).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 7). On December 4, 2012, the Appeals Council denied this request for review. (Tr.
1-3). On January 11, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of this Court on February 8, 2013. ECF No. 8. Both Parties have filed appeal briefs.
ECF Nos. 11-12. This case is now ready for decision.
2.

Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s

findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than

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a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “physical or mental impairment” as “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that
his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)

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whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3.

Discussion:
In his appeal brief, Plaintiff raises the following arguments for reversal: (1) the ALJ’s RFC

determination is not supported by substantial evidence in the record; and (2) the ALJ’s disability
determination is not supported by substantial evidence in the record. ECF No. 11 at 1-16. After
reviewing these arguments, the Court agrees with Plaintiff’s first argument and finds the ALJ’s RFC
determination is not supported by substantial evidence in the record. Accordingly, the Court will
only address this issue.
In a social security disability case, the ALJ is responsible for determining a claimant’s RFC
based upon all of the relevant evidence. See Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010). The
relevant evidence includes the claimant’s own description of his or her limitations, the claimant’s
medical records, and observations of the claimant’s treating physicians and others. Id. The ALJ’s
RFC determination must also be supported by “some” medical evidence. See Perks v. Astrue, 687
F.3d 1086, 1092 (8th Cir. 2012).
In the present action, Plaintiff underwent two physical consultative examinations. The first

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examination was on January 14, 2010. (Tr. 454-467). As a part of this evaluation, Dr. Shannon H.
Brownfield, M.D. found Plaintiff had moderate limitations “globally” and had moderate to severe
limitations with the use of his right upper extremity. Id. In his opinion, the ALJ restated Dr.
Brownfield’s findings and found they were “basically consistent with the conclusions reached in this
[his] decision.” (Tr. 20).
This determination was incorrect, and Dr. Brownfield’s findings are not “basically
consistent” with the conclusions reached in the ALJ’s opinion. Indeed, in his opinion, the ALJ found
Plaintiff could perform “frequent . . . reaching and handling in all other directions [apart from
overhead] with his right upper extremity.” (Tr. 17) (emphasis added). In contrast, Dr. Brownfield
found Plaintiff had moderate to severe limitations with the use of his right upper extremity. (Tr. 454467). It certainly does not appear such a conclusion of frequent use of his right upper extremity is
“basically consistent” with Dr. Brownfield’s findings of a moderate to severe restriction with his
right upper extremity. The ALJ did not explain his reasoning on this issue, and without further
explanation, the Court cannot find the ALJ was correct in his analysis of Dr. Brownfield’s findings.
More problematic is the ALJ’s analysis of Plaintiff’s second consultative evaluation which
was performed by Dr. Ted Honghiran, M.D. on March 30, 2011. (Tr. 584-587). As a part of this
evaluation, Dr. Honghiran took x-rays of Plaintiff’s lumbar spine and right shoulder. Id. After
reviewing those x-rays, Dr. Honghiran found Plaintiff suffers from degenerative disk disease at the
L4-5 and L5-S1 level of the lumbar spine, and, as a result, suffers from chronic lower back pain. Id.
Despite this objective testing and these objective findings regarding Plaintiff’s back pain, the
ALJ summarily discounted Dr. Honghiran’s finding of chronic back pain. (Tr. 21). The ALJ stated
he summarily discounted Dr. Honghiran’s opinions because Dr. Honghiran also found Plaintiff was
“not able to return to work,” and the ALJ noted that finding is exclusively reserved for the SSA. Id.
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While the ALJ is correct that the issue of disability is reserved for the SSA, the ALJ cannot use that
finding as a basis for entirely disregaring all of Dr. Honghiran’s other findings, including his
objective support for Plaintiff’s claim that he suffers from chronic lower back pain.
Upon review of the other medical evidence in this case regarding Plaintiff’s limitations, the
Court finds no other substantial support for the ALJ’s conclusions regarding Plaintiff’s limitations
and his finding that Plaintiff retains the capacity for a limited range of light work.
4.

Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 12th day of March 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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